A bill in equity to quiet title cannot be maintained, either
under the general jurisdiction in equity or under the statute of
Nebraska of 1873, by one having an equitable title only.
This case, of far as is material to the understanding of the
appeal, was a bill in equity by Martin Spitley, a citizen of
Illinois, against George W. Frost and wife, citizens of
Nebraska,
Page 121 U. S. 553
Thomas C. Durant, a citizen of New York, and the Credit Mobilier
of America, a corporation of Pennsylvania, alleging that the
plaintiff was entitled to two lots of land in the City of Omaha,
County of Douglas, and State of Nebraska, under a sale on execution
against Frost to one John I. Redick, and a conveyance from Redick
to the plaintiff and praying for a decree quieting the plaintiff's
title, and ordering a conveyance to him of the legal estate. Frost
and wife, by answer and cross-bill, denied the validity of the sale
on execution, and claimed the land as a homestead. After the
completion of the pleadings between Spitley and Frost and wife, the
case was referred to a master, whose report was confirmed by the
circuit court, and a final decree was entered for Spitley on his
bill against Frost and wife, the Credit Mobilier were not served
with process, the record did not show publication of the notice
ordered to them upon either bill, they did not appear in the cause,
no decree was rendered against them, and they were not made parties
to the appeal.
The material facts, as appearing by the admissions in the
pleadings, the master's report and the evidence taken in the case,
were as follows:
Prior to 1866, the Credit Mobilier, in whose employ Frost was,
purchased the land in question, took the title in the name of
Durant, its president, and built a house upon it for the use of
Frost and his family under an agreement between the corporation and
Frost by which the title was to be conveyed to him upon a final
settlement between them. Frost and his family forthwith took
possession of the land, and thenceforth occupied it as a homestead,
and were in possession when this bill was filed.
On November 11, 1870, Redick, who was an attorney, and Frost
made and signed the following agreement:
"In consideration of $2,500 as attorney's fees, I agree with
Hon. G. W. Frost that I will bring suit, and procure, through the
courts or otherwise, to him a good title to the premises he, said
Frost, now occupies as his residence in the City of Omaha, and,
in
Page 121 U. S. 554
case [of] any settlement or arrangement of the suit, then said
Frost is to pay in proportion only, and, in case said Frost fails
to procure said title at all, then the said attorney is to have a
mere nominal fee for his services, to-wit, $100."
Redick accordingly, on April 29, 1871, brought a suit in equity
on behalf of Frost against the Credit Mobilier and Durant in the
courts of Nebraska, and in that suit, on March 27, 1876, obtained a
decree that upon Frost's paying to said defendants, within thirty
days, the sum of $302.71 remaining due from him to them, they
should convey the land to him. That sum was not paid within the
time fixed, Frost contending that Redick, by the agreement between
them, was bound to pay it. On November 11, 1876, said defendants
executed a quitclaim deed to Frost, but it was never delivered to
him or recorded. Durant afterwards brought an action of ejectment
for the land against Frost, which was pending until June 8, 1880,
when Redick, having been made a defendant therein on the ground of
his having succeeded to Frost's rights in the property under the
proceedings stated below, paid that sum, with interest, and the
action of ejectment was thereupon dismissed.
On June 26, 1877, Redick brought an action at law to recover his
fee of $2,500 against Frost in the Circuit Court of the United
States for the District of Nebraska, in which, on July 30, 1877, he
obtained a writ of attachment, on which this land was attached, and
was appraised at $6,000; on March 14, 1878, recovered judgment, and
on July 1, 1878, obtained an order of sale as upon execution, on
which this land was appraised, "after deducting all prior liens
thereon," at $500, the appraisers adding:
"The said defendant's only interest in said property, as appears
by the records of Douglas county, Nebraska, being that of occupancy
and possession, we appraise the said interest as above,"
and the marshal, on August 24, 1878, after 30 days'
advertisement of "the property described in this order," sold by
auction Frost's interests in these lots to Redick for $350. Frost's
solicitor at the time of the sale gave notice to the marshal that
Frost claimed the land as his homestead, and afterwards moved the
court to set aside
Page 121 U. S. 555
the sale for this and other reasons. But the court, upon a
hearing, confirmed the sale and directed the marshal to execute and
deliver to Redick a deed in the usual form, which was accordingly
done, and Redick, on September 8, 1880, conveyed to Spitley, the
present appellee.
MR. JUSTICE GRAY, after stating the case as above reported,
delivered the opinion of the Court.
The opinion of the circuit court proceeded upon the grounds that
Frost's homestead right, as against the contract made by him with
Redick in 1870, and the judgment and execution afterwards obtained
by Redick on that contract, was governed by the Homestead Act of
Nebraska of 1866, by which no consent of the wife to an alienation
of the homestead was required, and that the sale on execution,
confirmed by the court, cut off the right of homestead. 15 F. 299.
But it is unnecessary to consider the validity of either of those
grounds, because, even if they are well taken, Spitley's bill
cannot be maintained.
At the time of the sale on execution of Frost's interest in the
land, the legal title was and it still remains in Durant. Although
Frost, under his agreement with Durant and the corporation, and the
decree which he had recovered against them, had been entitled to a
deed of the land upon the payment of a certain sum of money, he had
not paid the money, nor had any deed been delivered to him; so that
his title, either by virtue of the agreement and decree or by
virtue of his occupation of the land as a homestead, never was
anything more than an equitable title. The sale on execution
against him (if valid and effectual) and the deed of the marshal
passed only his equitable title to Redick. Redick's payment to
Durant of the money unpaid by Frost did not divest Durant of his
legal title, and Redick's subsequent conveyance to Spitley could
pass no greater right than Redick had. Spitley's
Page 121 U. S. 556
title therefore at best, is but equitable, and not legal, and
Frost, and not Spitley, is in actual possession of the land.
Under the jurisdiction and practice in equity, independently of
statute, the object of a bill to remove a cloud upon title, and to
quiet the possession of real estate, is to protect the owner of the
legal title from being disturbed in his possession or harassed by
suits in regard to that title, and the bill cannot be maintained
without clear proof of both possession and legal title in the
plaintiff.
Alexander v.
Pendleton, 8 Cranch 462;
Peirsoll v.
Elliott, 6 Pet. 95;
Orton v.
Smith, 18 How. 263;
Crews v.
Burcham, 1 Black 352;
Ward v.
Chamberlain, 2 Black 430. As observed by Mr.
Justice Grier in
Orton v. Smith:
"Those only who have a clear legal and equitable title to land,
connected with possession, have any right to claim the interference
of a court of equity to give them peace or dissipate a cloud on the
title."
18 How.
59 U. S. 265. A
person out of possession cannot maintain such a bill, whether his
title is legal or equitable, for if his title is legal, his remedy
at law by action of ejectment is plain, adequate, and complete, and
if his title is equitable, he must acquire the legal title and then
bring ejectment.
United States v. Wilson, 118 U. S.
86;
Fussell v. Gregg, 113 U.
S. 550.
It is possible that one who holds land under grant from the
United States, who has done everything in his power to entitle him
to a patent (which he cannot compel the United States to issue to
him), and is deemed the legal owner so far as to render the land
taxable to him by the state in which it lies, may be considered as
having sufficient title to sustain a bill in equity to quiet his
right and possession.
Carroll v.
Safford, 3 How. 441,
44 U. S. 463;
Van Wyck v. Knevals, 106 U. S. 360,
106 U. S. 370;
Van Brocklin v. Tennessee, 117 U.
S. 151,
117 U. S. 169.
But no such case is presented by the record before us.
In
Stark v.
Starrs, 6 Wall. 402, the suit was founded on a
statute of Oregon authorizing "any person in possession" to bring
the suit. The Court, after observing that "his possession must be
accompanied with a claim of right, legal or equitable," held that
the plaintiff proved neither legal nor equitable title, and
consequently the question whether an equitable title only
Page 121 U. S. 557
would have been sufficient to maintain the suit was not
adjudged. In
Reynolds v. Crawfordsville Bank, 112 U.
S. 405, the decision was based upon a statute of
Indiana, under which, as construed by the Supreme Court of that
state, an equitable title was sufficient either to support or to
defeat the suit.
Jeffersonville Railroad v. Oyler, 60 Ind.
383;
Burt v. Bowles, 69 Ind. 1.
See also Grissom v.
Moore, 106 Ind. 296.
A statute of Nebraska authorizes an action to be brought
"by any person or persons, whether in actual possession or not,
claiming title to real estate against any person or persons who
claim an adverse estate or interest therein, for the purpose of
determining such estate or interest, and quieting the title to said
real estate."
Nebraska Stat. February 24, 1873, Rev.Stat. 1873, p. 882. By
reason of that statute, a bill in equity to quiet title may be
maintained in the Circuit Court of the United States for the
District of Nebraska by a person not in possession, if the
controversy is one in which a court of equity alone can afford the
relief prayed for.
Holland v. Challen, 110 U. S.
15,
110 U. S. 25.
The requisite of the plaintiff's possession is thus dispensed with,
but not the other rules which govern the jurisdiction of courts of
equity over such bills. Under that statute, as under the general
jurisdiction in equity, it is "the title" -- that is to say, the
legal title -- to real estate that is to be quieted against claims
of adverse estates or interests. In
State v. Sioux City &
Pacific Railroad, the Supreme Court of Nebraska said:
"Whatever the rule may be as to a party in actual possession, it
is clear that a party not in possession must possess the legal
title in order to maintain the action."
7 Neb. 357, 376. And in
Holland v. Challen, above
cited, this Court said: "Undoubtedly, as a foundation for the
relief sought, the plaintiff must show that he has a legal title to
the premises."
The necessary conclusion is that Spitley, not having the legal
title of the lots in question, cannot maintain his bill for the
purpose of removing a cloud on the title; he cannot maintain it for
the purpose of compelling a conveyance of the legal title, because
Durant, in whom that title is vested, though named as a defendant,
has not been served with process or
Page 121 U. S. 558
appeared in the cause, and for like reasons Frost and wife
cannot maintain their cross-bill.
Decree reversed and case remanded to the circuit court with
directions to dismiss the appellee's bill and the appellants'
cross-bill without prejudice, the appellee to pay the costs in this
Court and in the circuit court.
